Fourth Amendment – Hot Airhttp://hotair.com
The world’s first, full-service conservative Internet broadcast networkSat, 10 Dec 2016 01:41:13 +0000en-UShourly1https://wordpress.org/?v=4.6.116302432Trump on stop and frisk: It’s a great way for cops to seize gunshttp://hotair.com/archives/2016/09/22/trump-stop-frisk-great-way-cops-seize-guns/
Thu, 22 Sep 2016 20:41:07 +0000http://hotair.com/?p=3923786A follow-up to yesterday’s post. When he talks below about cops taking guns away, he means illegal guns, of course. A person authorized to carry concealed would get to keep their weapon — but only after they’ve been stopped and frisked first, presumably, and the cops assured that there’s a lawful permit in place. Is the NRA simpatico on that? Leon Wolf notes that right-wingers would be having conniptions if Hillary Clinton vowed to send the police into rural America to stop people on the street and perform gun-check patdowns because they allegedly made “furtive movements.”

That’s no mere hypothetical. The highest concentration of lawful concealed-carry permits in Chicago is among black and Latino residents. A lot of law-abiding gun owners would be stopped, searched, and asked to show their permit papers without probable cause to believe they’ve committed a crime if stop-and-frisk comes to the midwest.

Trump: "They will stop, they will frisk, and they will take the gun away and they won't have anything to shoot with." pic.twitter.com/gGx0rJniU7

The way Trump phrases the situation there raises an interesting legal question. Traditionally, stop-and-frisk begins with a passerby doing something to create a “reasonable suspicion” of criminal activity (furtive movements!) followed by the cops patting him down to look for weapons. That is, there’s suspicious behavior and then then you get to search for guns. Trump’s explanation seems to imagine that carrying a gun is itself suspicious behavior that might warrant a stop even in a jurisdiction where concealed-carry permits are granted. At least one federal appellate court, applying lower-court decisions in Florida, agreed with him on that but it’s hard to imagine the NRA would. How can a gun-rights group believe that carrying is inherently criminally suspicious, especially when they also believe that more guns among the public equals less crime? Being subject to more frequent police stops and searches is bound to deter some permit-holders from carrying in the first place in order to avoid the hassle. Relatedly, should the NYPD be stopping Donald Trump when he’s out and about in Manhattan? Because he’s been known to carry too.

What Trump wants, I think, is to expand the basis for “Terry stops” (the sort of casual stop involved in stop-and-frisk) from suspicious behavior by individuals to suspicious behavior by neighborhoods. If you’re in a high-crime area, everyone a cop encounters on the street would, in theory, be under greater “reasonable suspicion” of criminal activity. People could be searched essentially randomly in order to look for illegal guns. And it’s true, of course, that a more aggressive stop-and-frisk program will uncover more illegal guns. The number of guns seized during stops in New York City is far lower than it used to be after Bill de Blasio and Bill Bratton scaled back stop-and-frisk, but it’s worth looking at the graphs here to see how the rates have changed. Guns seized fell by nearly 50 percent between 2012 and 2013 but the number of stops overall fell by nearly three-quarters. It’s not a one-to-one relationship. You’re going to miss some illegal guns with less aggressive stop-and-frisk but maybe not as many as you think, and you’re also going to avert having legal gun owners searched needlessly.

]]>3923786Another 4th Amendment debate, this time over your car’s high beamshttp://hotair.com/archives/2016/07/21/another-4th-amendment-debate-this-time-over-your-cars-high-beams/
Thu, 21 Jul 2016 18:01:48 +0000http://hotair.com/?p=3914078We recently went through a rather protracted debate over applications of the 4th Amendment in general and the case of Utah v. Strieff in particular. In that case, a questionable stop resulted in the discovery of illegal drugs in a car driven by someone with an outstanding warrant on an unrelated charge. Now there’s another case in New Jersey which raises similar questions and the state supreme court has gone in a different direction than the Supremes took in the aforementioned one. (The Supreme Court ruled that the resulting evidence discovered by the police was admissible in Strieff.) In this scenario, a driver with their high beams on in an otherwise deserted street was found to have an illegal weapon. (NJ.com)

New Jersey’s highest court ruled on Wednesday that an Essex County sheriff’s officer violated the state constitution when he pulled over a motorist for using high beams when there were no other cars on the road.

The state Supreme Court upheld a trial court ruling suppressing weapons evidence found on the passenger of the vehicle, Al-Sharif Scriven, because it was the product of an unreasonable search.

The case stemmed from a November 2013 incident in which the sheriff’s officer, David Cohen, was waiting for a tow truck to remove an unregistered vehicle from the street around 3 a.m.

In some ways this may prove an even better test case than Strieff’s, though I have a feeling the Supreme Court wouldn’t see it the same way as I do. Scriven was, from all descriptions, doing nothing wrong. Having your high beams on when there is no oncoming traffic is not, to my knowledge, against the law anywhere. If so, then why sell cars with high beams? It’s the responsibility of the driver to dim them to avoid blinding any oncoming traffic. Since his was the only car on the street at the time it’s fair to criticize the deputy for flagging him down, even though he stated his original intention was only to issue him a verbal warning about the high beams and send him on his way.

With that as the backdrop, we get to the meat of the case. The deputy approaches the car and reports smelling marijuana from inside the vehicle. Again, we’re not talking about a terribly serious crime here, but if a cop smells some pot he’s likely going to ask questions. The resulting search turned up a stolen gun with a magazine larger than is allowed by state law. (I know… I know. Don’t even get me started on that one, but it’s the law on the books in New Jersey at the moment.) Scriven is then placed under arrest on charges of unlawful possession of a handgun, possession of hollow-nose bullets and receiving stolen property. At trial he walked on a technicality because all of the evidence was Fruit of the Poisonous Tree.

We will no doubt have this debate, particularly with Libertarians, until the cows come home but nothing changes the underlying facts. Yes, the man was pulled over for a totally bogus reason. But he had a stolen gun full of hollow point rounds! Nobody – not even the defendant – is denying it. And now he gets to walk? What next… did they have to give him his gun back too? For all of the complaints we hear from the anti-gun rights lobby, one of the chief responses from Second Amendment supporters is that the government doesn’t do enough to enforce the laws we actually have on the books before we begin talking about more restrictions. Here’s a textbook case of a guy who shouldn’t have a gun, but we’re going to let him walk. Why? Because the original reason he encountered the cops wasn’t legitimate?

I’m sorry. I suppose that in the end, my complaint isn’t so much with the specific circumstances of each arrest or the current interpretation of the Fourth Amendment, but with the entire Poisonous Tree doctrine. The fact that law enforcement didn’t know ahead of time that you might be a dangerous criminal does not, in my opinion, outweigh the reality that you were in fact a dangerous criminal. Letting this guy walk on that sort of technicality is a travesty of justice and doesn’t serve the larger cause of enforcing the law and keeping us safe.

]]>3914078The Fourth Amendment covers everyone … including suspected criminalshttp://hotair.com/archives/2016/06/30/the-fourth-amendment-covers-everyone-including-suspected-criminals/
Fri, 01 Jul 2016 00:41:46 +0000http://hotair.com/?p=3911295It’s completely understandable why “law and order” conservatives are defending the U.S. Supreme Court’s decision in the Utah v. Strieff case. Edward Strieff Jr. had a (traffic) warrant out for his arrest when he was stopped by a cop in 2006, and drugs were found on his person. Jazz went as far as to write here the Fourth Amendment wasn’t created to protect the guilty. He went even further on it today by writing he couldn’t figure out “Strieff failed to meet that bar for reasonable suspicion remains a mystery to me, but even if that’s the standard in Utah it still seems illogical to place the blame on the police for asking a question.”

What’s interesting is the Utah Supreme Court actually agreed with Strieff that his search violated the Fourth Amendment. Justices wrote Strieff was “unlawfully detained,” which resulted in the outstanding warrant being discovered, along with the drug paraphernalia. It looks like they wouldn’t have had a problem with the stop if the officer had seen Strieff enter, then exit, the house. Since the cop only saw Strieff enter, that’s why the Utah Supreme Court ruled the way it did, before SCOTUS decided otherwise.

There’s another reason why conservatives shouldn’t be celebrating the Utah v. Strieff decision: over-criminalization. We live in a time where Americans commit an average of three felonies a day (without even knowing it), and this is only on the federal level. State and local governments also pass laws which make no sense at all, except they just don’t want people to do certain stuff. This was something Right on Crime analyst Joe Luppino-Esposito told me last weekend during FreedomWorks’ #justiceforall blogger summit:

“Then there’s this idea of over-criminalization sort of broadly, both local and, you know, state and federal of things that we’re making crimes that we don’t want really want to be actual criminal, we really, really think someone shouldn’t do it, so we’ll make it a crime.”

Luppino-Esposito used the difference between “original crime” of murder or rape, and things which are bad because “we say they’re bad (think speeding, not using a blinker, or carrying a gun).” One classic example of this is Shaneen Allen, the Pennsylvania mother who faced three years in a New Jersey prison for carrying a loaded gun in her car during a traffic stop. Allen had a CCW permit, but New Jersey requires guns to be unloaded and has a ban on hollow-point bullets. No one’s life, liberty, or property was threatened, but New Jersey politicians viewed having a loaded gun as “bad,” so they made it a crime. It’s true Allen was eventually pardoned but it’s doubtful this would have happened if there hadn’t been such an uproar. There’s no guarantee this would have happened if Governor Chris Christie hadn’t been planning a presidential run, or if a gun-grabbing Democrat had held the governor’s mansion.

Another example of the dangers of over-criminalization is a story from Guardians of the Galaxy director James Gunn. Gunn posted on Facebook how he had to take his dog to the vet because it was having seizures from ingesting marijuana…marijuana Gunn didn’t even know was in his Atlanta house.

“No,” I told her. “I don’t smoke pot.” And that’s true – I don’t do any drugs, or even drink alcohol.

“Because that’s where I’ve seen symptoms like this,” she said…Both of my assistants live in the house with me….

However, in that moment, my other assistant texted back and said that his ex-girlfriend had left some edibles – weed-infused chocolate coffee beans – in his nightstand. He has been packing to go and he threw the coffee beans into a trash bag – which Von Spears had torn through and gotten to the coffee beans.

Gunn could have been charged (and might be, depending on the mood of the prosecutor) for violations of Georgia’s anti-cruelty provision, even though he had no idea the weed-infused chocolate coffee beans were in his house. The only reason he posted the story was to point out how people need to be more careful where they store their weed. Does this mean the police should be searching Gunn or his roomies for drugs each time officers come across because of a Facebook post? Absolutely not! Say your son or daughter or roommate scores some weed, sneaks it into the house, and your home gets raided by the cops. Should you have to forfeit your home because your child had drugs, without your knowledge? Absolutely not, but that’s what Philadelphia-area prosecutors tried to do in 2014.

This is why Utah vs. Strieff decision is so important because of how the government is criminalizing everything from ripping the tag off a mattress to sitting in the seat by subway car door if you’re not disabled in Washington, DC. It means if you get pulled over for maybe doing a weird turn in New Jersey, and a cop thinks you might be a criminal, and then sees your loaded gun in your glove compartment, you’re gonna be arrested. If you walk out of a New Hampshire movie theater before noon, you can be searched because it’s illegal to show a movie before 2 p.m. The Strieff decision + over-criminalization could end up meaning no one is secure in their persons because we’re all basically criminals. Which is a problem, and why justice reform (and groups which push it) is sorely needed.

]]>3911295Returning to the 4th Amendment and Utah v. Strieffhttp://hotair.com/archives/2016/06/30/returning-to-the-4th-amendment-and-utah-v-strieff/
Thu, 30 Jun 2016 13:21:47 +0000http://hotair.com/?p=3911245The other day I took at look at the Supreme Court case of Utah v. Strieff and the uproar among Libertarians over how the decision supposedly gutted the Fourth Amendment. You can read the original for the details, but the case centered around a person who was pulled over after leaving a home which was under surveillance for suspected drug activity and subsequently found to have an outstanding warrant. A search then revealed that he had drugs on him and he was arrested and convicted. The Supremes held that the valid (though unrelated) warrant made the search reasonable and the conviction was upheld.

Much of my ire over the protests surrounding this decision arose from my friend Doug Mataconis and his claims that the decision drove a stake through the heart of the Fourth Amendment. He clearly didn’t care for my interpretation of the Bill of Rights as being primarily designed to protect the innocent from the overbearing power of the government, and went on to opine at length on the subject again yesterday. After a long speech about the Founders and the history of British and American law, he dredges up some lofty quotes.

As the English legal philosopher William Blackstone, who had literally written the book that lawyers in both the United Kingdom and the United States relied on as a primary treatise on the law, famously put it, “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”

Yes, yes… we all know the baseline assumption. Everyone is innocent until proven guilty. Here’s something else we all know: the reality is that we don’t treat everyone as if they are as innocent as everyone else when there’s clear evidence to the contrary and the police can’t afford to do that either. Doug makes the point that in the specific Strieff case, “everyone conceded that the stop was illegal from the start and that the accused should have been permitted to go about their business.”

I checked with a couple of attorneys last night and apparently the validity of a stop varies from state to state and, depending on the circumstances, from case to case. The house in question was under surveillance because the police had received an apparently credible report that there was illegal drug activity taking place there. It seems to me that persons seen coming and going from such a location during the course of the investigation would be, at a minimum, worth checking out to see if they were part of the suspected activity. How Mr. Strieff failed to meet that bar for reasonable suspicion remains a mystery to me, but even if that’s the standard in Utah it still seems illogical to place the blame on the police for asking a question.

Let’s consider the rest of the arrest scenario, though. We’ve already established that Mr. Strieff did, in fact, have a valid warrant out for his arrest. If the cops had seen him anywhere on the streets, such as being parked outside a convenience store, and run his plates or checked his ID they would have discovered that fact, just as they did during this arrest. And upon discovering that he was wanted, they could have searched him as part of the arrest, yes? At that point they still would have discovered that he had illegal drugs on him and charged him for that as well. How is this any different?

If we must get a bit more crude about the result of this case, the cops had the right guy from the beginning. There was drug activity going on at the house just as reported. Strieff was apparently involved in that activity because they found the drugs on him. At this point we have crossed over from ensuring that the Fourth Amendment is in force and protecting the innocent from undue harassment by the government and into the territory of using it as a dodge to try to get a guilty person off the hook. Is that really the intention of the Fourth Amendment? To make it as difficult as possible for law enforcement to obtain a conviction and to earn a fee for defense attorneys? I know Doug is hanging his hat on the entire premise of everyone is innocent until proven guilty, but Strieff was guilty in practice if not by legal definition from the moment they pulled the drugs out of his pocket. And he was already wanted by the cops for something else, no matter how minor the previous offense may have been. This just smells of abuse of our constitutional rights to escape prosecution rather than a question of ensuring everyone’s rights are protected.

]]>3911245Great news from WaPo/ABC poll: 13% of Americans understand due processhttp://hotair.com/archives/2016/06/28/great-news-from-wapoabc-poll-13-of-americans-understand-due-process/
Tue, 28 Jun 2016 12:41:37 +0000http://hotair.com/?p=3910924Sigh.]]>At least we can dispense with the debate over the sample composition of the Washington Post/ABC News poll on this question. Today, ABC unveiled another section of questions from last week’s poll dealing with the Orlando terror attack and the official response to it. By an 86/13 split, Americans support the use of secret watch lists to block the exercise of the Second Amendment — and another 72% may have no issue with infringing on the Fourth Amendment, either.

On the other hand, support for an assault-weapons ban isn’t gaining a lot of strength:

Support varies for policy proposals to address the issue. Most divisive is the idea of nationwide ban on the sale of assault weapons, 51-48 percent, support-oppose, with most on both sides feeling strongly about their position. That said, support for an assault weapons ban is up 6 points from its more-than-20-year low in December – the sole ABC/Post survey to date to find majority opposition to an assault weapons ban.

The biggest increases in support are among Northeasterners (+12 points, to 65 percent), middle- to upper-income adults (+12 points, to 49 percent), Democrats and Democratic-leaning independents (+11 points, to 69 percent), moderates (+11 points, to 57 percent) and nonwhites (+10 points, to 59 percent). There also was a 20-point increase among strong conservatives, but only to 35 percent support overall.

In sharp contrast with views on assault weapons, there’s wide agreement on trying to keep guns out of the hands of those who appear on the FBI’s list of people with possible connections to terrorism. The 86 percent support for this proposal is similar to the level of support in past ABC/Post polls for expanded background checks on people buying guns at gun shows or online.

Let’s start with the assault-weapons ban response. A look at the raw data from pollster Langer Associates shows this to be the second-lowest level of support in the past 22 years. Three years ago, WaPo/ABC polled three times in four months after the Newtown shooting, and got roughly similar responses in all three: 58/39, 57/46, and 56/45. Apart from last December’s majority 53% opposition, this poll’s 48% is the highest level of opposition in the same 22-year span. And in this case, the D+12 sample would make at least some difference, given the specific increase in that demo. This isn’t exactly momentum.

That brings us to the constitutional questions. The pollster asked whether respondents supported “blocking people from buying guns if they appear on the FBI’s list of people with possible connections to terrorism,” which doesn’t exactly provide the context of due process. However, that question got asked after the query about supporting “increasing surveillance of people suspected of possible links to terrorism, even if that intrudes on privacy rights,” which clearly does imply the constitutional issues at hand. And the answer to that question was …

Additionally, 72 percent support increasing surveillance of people suspected of possible links to terrorism even if it intrudes on privacy rights. That follows a historical pattern of willingness to forgo privacy for safety when it comes to countering the threat of terrorism.

Sigh, as Hillary Clinton would say out loud. We’ve covered the centrality of due process to core liberty interests on a number of occasions, but just for the record:

The American system of justice relies on core principles based on a fundamental understanding of natural law. First, the Constitution exists to restrain government from encroaching on the rights of its sovereign citizens. Second, each citizen retains those civil rights unless a jury of their peers convicts them of violating the law. Third, each citizen is entitled to due process and a presumption of innocence from the government until conviction.

In the wake of the Orlando shooting, the familiar rush to use the no-fly and terror watch lists as a bar to owning a firearm violates every single one of these principles. …

In this proposal, Clinton and her allies call for an end to due process before denying citizens their constitutional right to bear arms. This is a far more fundamental issue than debating over which firearms to bar from private ownership; it strikes at the fundamental relationship between citizens and the government that exists to serve their liberty interests. Once those principles have been discarded for political expediency on the mere basis of official suspicion, no rights — whether natural or declared — will ever be safe again.

The wisdom of the founding fathers in enshrining these into the Constitution has never been clearer. The temporary passions and whims of the majority would make liberty untenable any other way. It’s too bad that Americans seem so eager to dispose of their birthright, and for no good purpose — since Omar Mateen wasn’t on a watch list at the time he purchased his weapons anyway, and the FBI had closed their investigation of him two years earlier.

Not all of the news from this poll was bad. Slightly more people support encouraging broader gun ownership and carry than support the assault-weapons ban (54% to 51%, respectively), and a plurality (48/40) are tired of US leadership avoiding the naming of radical Islam as a motivation in these attacks. After seeing only 13% of Americans cognizant of the constitutional issues at play with the watch-list ban proposals, though, those points hardly cheer.

]]>3910924The Fourth Amendment wasn’t created to protect the guiltyhttp://hotair.com/archives/2016/06/26/the-fourth-amendment-wasnt-created-to-protect-the-guilty/
Sun, 26 Jun 2016 13:31:27 +0000http://hotair.com/?p=3910669The Libertarians are up in arms over yet another Supreme Court decision this week which involves the question of when police are allowed to use evidence of a crime in the prosecution of a suspect. In a five to three ruling which crossed the normal ideological battle lines of the SCOTUS justices, the court found in the case of Utah v. Strieff that evidence of a crime discovered during a traffic stop could be used if the suspect has an outstanding warrant for an unrelated offense. (New York Times)

The Supreme Court ruled on Monday that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants.

Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop.

Justice Thomas’s opinion drew a fiery dissent from Justice Sonia Sotomayor, who said that “it is no secret that people of color are disproportionate victims of this type of scrutiny.”

The protests against this decision are simply making my head spin. Read the linked decision for the full details, but the short version should be enough to get us started. The cops had received a tip that there was narcotics activity taking place at a certain house and they placed it under surveillance. An officer saw Edward Strieff leaving the residence and proceeded to pull him over, though he admitted that the stated reason for the stop was rather thin. Upon being detained and identified, it was discovered that Strieff had an outstanding warrant and he was searched, leading to the discovery of methamphetamines and drug paraphernalia. He was then arrested.

The complaint from the Libertarians is that the original reason for stopping him wasn’t good enough, so the fact that he already had a warrant shouldn’t have been considered and, of course, any evidence found during the subsequent search should be thrown out. My friend Doug Mataconis is up in arms over this, calling it a decision which stabs at the heart of the Fourth Amendment.

It’s hard to understate just how much damage the Court has done to the Fourth Amendment and its prohibitions against illegal searches and seizures. There is no question that the initial stop in this case was illegal because the officer in question lacked probable cause, or even reasonable suspicion, that a crime had been committed. That fact alone should be the end of the inquiry in and of itself, because an illegal stop is supposed to mean that anything discovered as a result of that stop is considered inadmissible against the Defendant. This is what has come to be known as the “exclusionary rule,” and while the perception among most lay people is that this rule is largely an invention of the Supreme Court during the era when Earl Warren served as Chief Justice, and there is some truth in that regard. In reality, though, there is a long history of rulings in both American and British Common Law of court’s ruling that illegally obtained evidence cannot be used at trial. It’s a rule that makes sense because it is, in reality, the only way that courts can send a signal to law enforcement that violations of the Fourth Amendment will not be tolerated and that there will be consequences for the violation of a Defendant’s Constitutional rights.

The responses from Justice Sotomayor in her dissent and from the Libertarians who are bemoaning the death of the Constitution are equally maddening, though for different reasons. First of all, reading through Sotomayor’s rationale is enough to call her motives into question. Rather than tackling the issue of Fruit of the Poisonous Tree (or however this one is being classified) she spends a fair portion of her response turning this into a racial question, though that apparently wasn’t even brought up in the dispute of the original case. The question of when police may perform a search and if the resulting evidence can be used in court, can and does apply to anyone. Yet she actually entered the following into the nation’s body of Supreme Court decisions.(Emphasis added)

“For generations,” she wrote, “black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

“We must not pretend that the countless people who are routinely targeted by police are ‘isolated,’” she wrote. “They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter, too, our justice system will continue to be anything but.”

Did you catch the underlying message there?

An officer with a gun. (Every lethal force encounter between police and minority suspects)

No one can breathe. (“I can’t breathe” Eric Garner)

Until their voices matter. (Black Lives Matter)

This wasn’t a Supreme Court dissent. It was a series of excerpts from a Black Lives Matter diatribe in a case which wasn’t even addressing questions of profiling or any other related issue.

As to the actual legal questions we should have been tackling, I return yet again to what precisely it was that the Founders were trying to say when they established the Bill of Rights. They provided protections for the innocent against government officials using their massive power to bully and oppress them. The government can’t simply harass you and search you without probable cause to believe that you are breaking the law. They can’t quarter troops in your home. They’re supposed to leave you alone if there’s no reason to think that you are acting in a criminal fashion.

The cops weren’t surveilling that home because they were bored or had a grudge against Mr. Strieff or didn’t like the color of his skin. They were investigating a report of illegal drug activity. And oh, by the way… when they pulled Strieff over, he had illegal drugs on him. And while the warrant was from a totally unrelated incident, it was still a valid warrant. Doug argues that this could happen even in cases of a warrant that may well be inaccurately left open when it has in fact been satisfied. Even if we were to accept this premise in general, nobody seems to be arguing that the warrant on Strieff was invalid. He was already subject to arrest on that basis.

And the part of these arguments where Libertarians carp about evidence being found drives me further up the wall. Doug references, “law enforcement acting illegally and using whatever evidence they find however they wish.” Well… yes! Are we really to interpret the Fourth Amendment as meaning that law enforcement must ignore any and all evidence they find unless they already had reason to believe that such evidence would be found? If a cop pulls you over for a busted taillight, strolls up to issue you a ticket and, oh, by the way, notices that there’s a headless corpse in the back seat of your car, do prosecutors have to throw out the existence of the body at your murder trial because they weren’t expecting to find it?

This is madness. The Bill of Rights was created to protect the innocent from the unchained power of the government, not to act as some sort of carnival dodge which should allow the guilty to walk free.

]]>3910669Supreme Court to deal with questions of evidence from police stopshttp://hotair.com/archives/2016/03/21/supreme-court-to-deal-with-questions-of-evidence-from-police-stops/
Mon, 21 Mar 2016 17:01:15 +0000http://hotair.com/?p=3898203The Supremes are back in business, even if they’re down a man at the moment, and they are considering the arguments they heard in Utah v. Streiff. This case could redefine the rights of the police when it comes to finding evidence of crimes through incidental means. A brief explanation of this specific incident is offered in the Baltimore Sun.

The case, Utah v. Strieff, involves a veteran narcotics detective who stopped a 46-year-old man in 2006 as he left a suspected drug house. The officer had no reason to believe the man had committed a crime, and the state acknowledged the stop was illegal. But the officer discovered the man had an outstanding warrant, arrested him and then found he was carrying methamphetamine.

Civil rights advocates are concerned that a ruling for the police could give law enforcement an incentive to stop more people — particularly in high crime areas — on questionable legal grounds, as fishing expeditions for warrants that would justify a search.

These types of Fourth Amendment cases are the ones where I frequently run afoul of the Big L Libertarians out there and it runs parallel to the issues I have with the whole Fruit from the Poisonous Tree premise. The Strieff arrest is one of those situations where the cops had to justify why they pulled a particular motorist over and what use – if any – could be made of evidence found during the stop. In this case, Streiff was observed leaving a residence which was under surveillance for suspected drug activity and was pulled over. Later, it was found that the driver had an outstanding warrant on him. Upon being arrested, illegal drugs were found on his person and he was tried and convicted.

I realize that Libertarians have books on this subject which go on for miles and the courts are entangled in many rules covering these scenarios, but you’ll excuse me if the layman doesn’t always see how this lines up with the intent of the Fourth Amendment. We are supposed to be protected from oppressive badgering and searches by law enforcement unless they have due cause to believe that we’re breaking the law. From the ten thousand foot perspective, it has always sounded to me like the amendment was designed to protect the innocent from unwarranted aggression by the state.

But I fail to see how this applies in so many of these cases. For example, Streiff was seen leaving a house which was already under investigation. Obviously that doesn’t prove that he was involved in any illicit activity, but it certainly sounds as if that makes him worth a brief discussion to see if he was involved. Beyond that, the guy already had a warrant out on him so, in theory, any cop who recognized him could have pulled up and nabbed him simply for walking down the street. And finally, when he left the drug house… he had the drugs on him. At what point does this pile up to a sufficient amount of evidence to say that you pulled over the right guy? If the police pull someone over under those circumstances and see a dead body in the back seat are they supposed to ignore it and let the motorist go on his way because they weren’t out investigating a homicide that day?

The protections we have under the Bill of Rights are vital, but it all too often seems as if clever lawyers find ways to use them as a shield to get the obviously guilty off the hook on a technicality. Is that really what the Founders intended or were they actually concerned about protecting the law abiding from undue oppression by the government? When you turn out to not be one of the law abiding, shouldn’t the courts temper those iron clad protections a bit?

]]>3898203US law enforcement using radar to “look” inside houses without warrants?http://hotair.com/archives/2015/01/20/us-law-enforcement-using-radar-to-look-inside-houses-without-warrants/
http://hotair.com/archives/2015/01/20/us-law-enforcement-using-radar-to-look-inside-houses-without-warrants/#commentsTue, 20 Jan 2015 21:41:44 +0000http://hotair.com/?p=3065747Courts have consistently held that law enforcement agencies cannot surveil private spaces without a warrant, especially houses and other domiciles, whether by wiretap or camera. Police can watch exteriors as part of an investigation, but surveillance inside a home requires a warrant, just as non-consensual entries do. Does that include radar? USA Today’s Brad Heath reports that more than 50 law-enforcement agencies have begun using radar as part of their surveillance, although it’s questionable whether they have been deployed without an entry warrant:

At least 50 U.S. law enforcement agencies have secretly equipped their officers with radar devices that allow them to effectively peer through the walls of houses to see whether anyone is inside, a practice raising new concerns about the extent of government surveillance.

Those agencies, including the FBI and the U.S. Marshals Service, began deploying the radar systems more than two years ago with little notice to the courts and no public disclosure of when or how they would be used. The technology raises legal and privacy issues because the U.S. Supreme Court has said officers generally cannot use high-tech sensors to tell them about the inside of a person’s house without first obtaining a search warrant.

So … do they? Thus far, the answer seems to be yes but. The cases he discusses involve arrests based on existing arrest warrants, including one upheld by the 10th Circuit Court of Appeals. In that case, US marshals arrested a fugitive after first using the radar to determine that someone was inside the residence first. That did not involve a search warrant, however, just the arrest warrant — which would be enough to seize someone inside a residence, although not to do a search beyond what is visible to the naked eye during the process of the arrest. Still, even with the knowledge of the radar search (and an initial lack of disclosure), the judges upheld the conviction and at least implicitly justified the use of radar, even though they predicted it would be a thorny issue in some cases.

It also has some connection to the recent debate over the militarization of domestic law enforcement. Unsurprisingly, this technology emerged from the urban warfare of Iraq and Afghanistan, where troops needed to know where potential ambushes might be staged against them. Heath reports that these systems were intended for both ground and drone use, which raises some questions too about domestic law enforcement as they begin to use drones for their work here. Once local law enforcement has these tools, will they be circumspect about their use — or will this represent yet another pushback on the limits of personal privacy?

The ACLU and the Electronic Frontier Foundation want tougher safeguards on their use:

“The problem isn’t that the police have this. The issue isn’t the technology; the issue is always about how you use it and what the safeguards are,” said Hanni Fakhoury, a lawyer for the Electronic Frontier Foundation. …

“The idea that the government can send signals through the wall of your house to figure out what’s inside is problematic,” said Christopher Soghoian, the American Civil Liberties Union’s principal technologist. “Technologies that allow the police to look inside of a home are among the intrusive tools that police have.”

Everyone wants law enforcement to have the tools necessary to make their job as safe as it can be — within the limits of the Constitution. If that requires radar, then law enforcement should be able to make that case to a judge and get a proper search warrant when needed. I’m not a big fan of the ACLU, but they and EFF are correct here. It’s not the technology itself that’s the problem, it’s ensuring that its use is limited to necessity. If this comes before the Supreme Court, I’d bet that will be an area of agreement across the ideological divide.

]]>http://hotair.com/archives/2015/01/20/us-law-enforcement-using-radar-to-look-inside-houses-without-warrants/feed/373065747SCOTUS to hear Colorado DUI blood test casehttp://hotair.com/archives/2014/12/08/scotus-to-hear-colorado-dui-blood-test-case/
http://hotair.com/archives/2014/12/08/scotus-to-hear-colorado-dui-blood-test-case/#commentsMon, 08 Dec 2014 13:01:08 +0000http://hotair.com/?p=2568012A case heading to the Supreme Court from Colorado will provide yet another test for the Fourth Amendment, this time as specifically applied to blood alcohol content testing for suspected cases of DUI. The question at hand is whether or not law enforcement can take a blood sample for testing from a suspect without their consent and still have the results be admissible in court. And so far the courts are balking.

When Jack Schaufele cruised into the busy intersection during rush hour and slammed into an oncoming car, his blood-alcohol level was nearly three times the legal limit.

But a jury may never know there was alcohol in his system.

Arapahoe County prosecutors have asked the U.S. Supreme Court to overturn a decision by a state judge and the Colorado Supreme Court, which found that because the officer did not try to obtain a warrant before she ordered a blood draw on Schaufele, the results may not be presented as evidence. Thirteen other states filed a petition asking the U.S. Supreme Court to pick up the case.

Clearly there were multiple questions about both the facts of the case and how it was handled. At the site of the crash, Schaufele was observed to be “speaking with a thick tongue” by officers, but they said that could have been either from alcohol or from getting hit by the airbag. Three officers had contact with the driver on the scene but did not report smelling alcohol on his breath. It was only a fourth officer, after he was brought in, who smelled it. The driver did not give consent to the blood test that was taken because he was either sleeping or unconscious.

None of that really reaches to the question which the court must decide, however. Without a warrant or consent, can the police conduct a blood test and use the results at trial? The Fourth Amendment would seem to say no. There are, of course, exceptions to this rule, as with most fundamental rights. There are frequent stories of highly controversial “no knock” raids conducted by police without a warrant. But the courts have agreed that there are times when the police simply can’t wait for a judge to sign off if the delay could reasonably be believed to have the potential for additional danger to citizens or property. If the only way to get the hostage out alive is to go in now, they will be forgiven for doing so.

But in the case of a possibly drunken driver who is already in the back of a squad car and posing no threat of further mayhem, it’s tough to argue that the same situation applies. Schaufele was not going to be able to cause more damage and would not be driving any more that morning. He was under the control of the officers on the scene. So the only danger posed by waiting for a warrant would be that the suspect’s blood alcohol level would drop below the legal limit, hurting their chances for a successful prosecution.

I’m sorry to say, but that doesn’t sound like sufficient reason to suspend someone’s constitutional rights. Police work is hard, but we’ve got to follow the rules.

]]>http://hotair.com/archives/2014/12/08/scotus-to-hear-colorado-dui-blood-test-case/feed/1942568012SCOTUS to consider police searches of hotel registrieshttp://hotair.com/archives/2014/10/21/scotus-to-consider-police-searches-of-hotel-registries/
http://hotair.com/archives/2014/10/21/scotus-to-consider-police-searches-of-hotel-registries/#commentsTue, 21 Oct 2014 23:21:19 +0000http://hotair.com/?p=1781747Can the police show up at a hotel and demand to the see the guest registry to determine who is staying there without obtaining a warrant from a judge? According to a law on the books in Los Angeles they can, or at least they could until the 9th Circuit Court of Appeals struck it down. Now the Supreme Court will take up the question.

The laws “expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers, an authorization which can be vital in the immediate aftermath of a homeland terrorist attack,” the city argued in its petition.

The law requires hotel owners to keep detailed records of guests, including identification, method of payment, the license plate numbers of their cars and how much they paid. For guests who pay in cash or stay for less than 12 hours, it requires even more details.

The hotel owners say they have no problem with that part of the law, and courts have ruled that hotel guests have no reasonable expectation of privacy about information they disclose to a third party.

But the appeals court ruled 7 to 4 that hotel owners should not have to make the records subject to police inspection on demand, without judicial supervision.

The 4th Amendment assures us that citizens shall be secure in their persons, houses, papers, and effects and will not be subject to search absent the issuance of a warrant upon probable cause. That primarily applies in our homes – whether owned or rented – but also inside of a hotel room. But what about the information in the guest registry? When you venture out from your home, your expectation of privacy and freedom from scrutiny decreases drastically, but the registry isn’t really yours. It’s the property of the hotel, and the courts have apparently already found that such information can be requested by the courts.

But do the cops have to go get a warrant before they can take a peek? It sounds to me like that’s up to the hotel management if such a court order isn’t presented. Exceptions could – and should – obviously be made for emergency situations where waiting for a warrant might result in injury, death or imminent danger to the public. But the same thing applies to your house, and under those conditions the police can barge in there also, with the ability to use what they find at trial. (Assuming they can satisfy the judge that it was a true threat of imminent danger.)

I suppose the fear here is that police could use the information for a fishing expedition. And when the most common uses listed are the case – prostitution and gambling – it’ hard to argue that there is an immediate threat to the public which couldn’t wait for a judge to be woken up to sign off on it. My guess is that the Supremes will strike this one down.

]]>http://hotair.com/archives/2014/10/21/scotus-to-consider-police-searches-of-hotel-registries/feed/261781747The cases to keep an eye on during the Supreme Court’s new termhttp://hotair.com/archives/2014/10/06/the-cases-to-keep-an-eye-on-during-the-supreme-courts-new-term/
http://hotair.com/archives/2014/10/06/the-cases-to-keep-an-eye-on-during-the-supreme-courts-new-term/#commentsMon, 06 Oct 2014 12:41:17 +0000http://hotair.com/?p=1485777The Supreme Court will sit for its first argument of the term this morning. I suppose given how few cases the high court accepts each year, they could all be considered important. But let’s not kid ourselves. So far, the high court has few cases on its docket that are likely to grab front page headlines—no same-sex marriage, no Obamacare, no right to bear arms. That could change, as I’ll discuss below, but first let’s look at my choices for the cases you should keep an eye on.

1. Heien v. North Carolina, to be heard today.

The issue in the first case to be heard this term is whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop. A police officer pulled Heien and a friend over for driving with only one working brake light, which, contrary to the police officer’s belief, wasn’t unlawful in North Carolina. During the unauthorized-by-law traffic stop, the police officer asked if he could search Heien’s car. Heien agreed (which makes us 2 for 2 when it comes to people behaving questionably in this case), and the search turned up a little plastic baggy of cocaine. At trial, Heien wanted to suppress the cocaine since the police officer had no lawful basis for the traffic stop in the first place.

The Supreme Court of North Carolina, in a split decision, held that the cocaine did not have to be suppressed because the police officer’s mistake of law was “reasonable.” Heien argues that this was error, relying in part on the contention that the police must at least be held to the same standard as ordinary citizens: “ignorance of the law is no excuse.”

2. Holt v. Hobbs, to be heard Oct. 7.

This is the first of a couple cases on the docket that touch on religious liberty. Holt is a Muslim inmate in Arkansas who believes his religion requires him to grow a half-inch beard. The Arkansas Department of Correction prohibits inmates from having beards for anything other than medical reasons. The prison asserts that preventing even a half-inch beard is a necessary security precaution. Holt points out that forty-four other prison systems in America do not prohibit half-inch beards as a security precaution.

Similar to the Hobby Lobby case last year, this one won’t be decided on First Amendment grounds. Congress has set in the Religious Land Use and Institutionalized Persons Act (RLUIPA, pronounced AR-LOO-pa) even greater religious protections than that provided by the First Amendment. Arkansas will have to show that its absolute prohibition on Holt’s beard is the least restrictive means of furthering a compelling government interest.

3. Zivotofsky v. Kerry, to be heard Nov. 3.

You may recall that a few years ago the high court was asked to weigh in on whether the judiciary gets a say in deciding whether Congress or the Executive Branch gets to decide whether American citizens born in Jerusalem could have Israel listed on their passports as their place of birth. The State Department had refused, citing longstanding department policy and foreign relations concerns. Congress, however, had passed a law requiring State to list Israel on passports at the request of Jerusalem-born Americans. Back then, the Supreme Court held this was not a political question outside of the reach of the judiciary and kicked it down to the lower courts to hash out. Now the case is back for a final resolution.

4 & 5. The Alabama Redistricting cases, to be heard Nov. 12.

These are two cases brought by the Alabama Democratic Conference and the Alabama Legislative Black Caucus arguing that the state’s redistricting in 2012 amounted to a racial quota and racial gerrymandering in violation of the equal protection clause of the Fourteenth Amendment. The state argued that its redistricting plan, which keeps the same number of majority black districts as the previous plan, was appropriate as an attempt to comply with the federal Voting Rights Act. A special three-judge district court panel agreed with the state.

Of note, the Obama Department of Justice precleared the Alabama redistricting plan, which was at the time covered by section 5 of the Voting Rights Act. The Supreme Court invalidated section 5 preclearance last year in Shelby County, but I suspect Alabama will lean hard on the fact that its plan passed muster once already. The Department of Justice has officially taken no position on the ultimate issue in these cases, instead arguing that the district court should have performed a different analysis.

6. Young v. UPS, to be heard Dec. 3.

In this employment law case, the Supreme Court will have to decide whether federal law requires that an employer who provides work accommodations to non-pregnant employees with work limitations must also provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” Young worked as a driver for UPS when, in 2006, she became pregnant. Her OB gave her a note saying that she should not lift more than twenty pounds at a time for the first twenty weeks of her pregnancy and then no more than ten pounds at a time for the rest of her pregnancy. Young brought the note to her supervisor, who terminated her since she could not meet the general lifting requirements for her driver job. Young contends that this was pregnancy discrimination prohibited by the law because UPS offers other work accommodations for injury or disability. UPS, and the Fourth Circuit, disagreed.

This case, I am sorry to report, could very well be the next Ledbetter. A decision going against Young will certainly lead to a torrent of “War on Women” commentary with congressional proposals for more anti-discrimination legislation likely to follow.

7. EEOC v. Abercrombie & Fitch Stores, argument date not set.

This is another employment case that touches a bit on religious liberty. It arises out of my home state of Oklahoma and an Abercrombie & Fitch store that I have actually been in. A&F has a “Look Policy” for its store salespeople and that policy does not include head scarves (or any head covering). A woman applied for a sales position and interviewed for it while wearing a black headscarf. She did not get the job after her interviewer rated her low in the “appearance and sense of style” category. At no time during the interview did the woman or her interviewer mention religion, nor did the woman explain that, as a Muslim, she wore the headscarf out of a sincere religious belief.

The EEOC sued, arguing that A&F had failed to accommodate the woman’s religious practice of wearing a headscarf. A&F argues that it had no duty to accommodate because the woman never asked for a religious accommodation and A&F had no way of knowing that she wore the headscarf out of religious obligation. Interestingly, the EEOC’s own regulations prohibit employers from asking prospective employees about their religious beliefs, which puts A&F in a rather impossible position.

Cert petitions to watch for

The Supreme Court is still filling its docket, but there some things we can be fairly confident of seeing at some point.

First, there are at least seven petitions for certiorari pending on the issue of whether the due process or equal protection clauses of the Fourteenth Amendment require states to legalize same-sex marriage or recognize same-sex marriages lawfully performed in other jurisdictions. This is the most-hyped Supreme Court issue this year and it isn’t even on the docket yet. In fact, every circuit courts of appeals that has reached this issue post-Windsor has agreed that states must legalize and recognize same-sex marriages. All of those decisions are on hold, however, while the Supreme Court decides if it wants to take up the issue. On the one hand, there is no circuit split requiring the Supreme Court to intervene. On the other hand, few think Justice Kennedy is going to pass up the opportunity to put the final touches on decades of work in this area.

Second, the Halbig/King/Pruitt line of cases challenging the IRS’ decision to provide Obamacare subsidies to individuals on the federal health exchange is bound to end up at the Supreme Court at some point. Halbig is still pending en banc at the D.C. Circuit. Pruitt is headed for its first round at the Tenth Circuit. But the King plaintiffs already filed for cert after their loss at the Fourth Circuit. Sen. Reid’s unseemly public chortling that his court-packing plan for the D.C. Circuit nullified the circuit split on this issue makes it more likely, I think, the justices that dissented in NFIB just skip to the chase and take King without waiting for the other circuit courts to weigh in.

Another case I’d dearly love to see the Supreme Court take up, just for the jokes alone, is a commerce clause case, Association des Éleveurs de Canards et d’Oies du Québec v. Harris. It’s about foie gras and whether California can ban the sale of foie gras from out-of-state farmers who force-feed their birds.

Finally, the Fifth Circuit has largely upheld Texas’ abortion clinic reform law, commonly known as HB2, which will result in the closure of all but eight abortion clinics in the state. That case is almost certainly headed to the Supreme Court, which will have to tussle over whether the hospital admitting privilege and ambulatory surgery center standards requirements constitute an undue burden on the right to an abortion.

]]>http://hotair.com/archives/2014/10/06/the-cases-to-keep-an-eye-on-during-the-supreme-courts-new-term/feed/191485777Supreme Court: Yes, America, of course cops need a warrant to search your smart phone during an arresthttp://hotair.com/archives/2014/06/25/supreme-court-yes-america-of-course-cops-need-a-warrant-to-search-your-smart-phone-during-an-arrest/
http://hotair.com/archives/2014/06/25/supreme-court-yes-america-of-course-cops-need-a-warrant-to-search-your-smart-phone-during-an-arrest/#commentsWed, 25 Jun 2014 16:41:52 +0000http://hotair.com/?p=313549Police want to rifle through the virtual filing cabinet you carry around in your pocket without permission — and there was a dispute over whether they should be able to do that? How was this even a case?

Actually, it wasn’t much of a case: 8-1, with Alito concurring in part and concurring in the judgment overall. No dissents. Roberts’s opinion for the Court was bold colors, too:

Follow the last link and skip to page 17 of the opinion to see him get going about the massive amount of information that smart phones can hold. The state’s thinking here, I guess, was that SCOTUS can be quirky when it comes to warrantless searches in the course of arrest, so why not run this up the flagpole and see how it flies? If cops can seize your DNA without a warrant during a stop by swabbing your cheek, why can’t they seize what’s in your Dropbox account too? That’s where the massive amounts of information come in: Between the enormous capacity of the phone’s hard drive, says Roberts, and the data stored remotely in the Cloud, a single arrest could give the state access to your entire life. The state’s best argument was that, in theory, a perp’s associates might be on the way to the scene to attack the police and the only way the cops might know that is to check his phone. How often does that really happen, though, asks Roberts? And even if it happens very rarely, how does that risk justify letting cops search 300 million people’s phones willy nilly during an arrest?

USA Today wonders if this presages another sweeping SCOTUS ruling down the road against NSA data-mining. Maybe not: Gabe Malor’s right that there’s a difference legally between the cops searching data stored on your own hard drive and searching data (or metadata) you’ve shared willingly with a telecom company. There’s a privacy interest in the former but not, under current precedent, in the latter. Then again, Roberts’s language today really isbroad. If the Court’s worried about letting the state tap a bottomless reservoir of information about individuals, they may not care much where the tap is placed. You could, in theory, dispatch with current precedent in one flourish: Since, in our interconnected world, virtually all digital information is disclosed to some entity at some point, the act of disclosure to a telecom company can’t be understood as destroying the individual’s privacy interest in the information. The question is, will metadata be treated like information stored on a smart phone’s hard drive or as something qualitatively different, like the DNA sample that cops are already allowed to take during arrest? And if the latter, how come the NSA can collect it without an arrest being made?

]]>http://hotair.com/archives/2014/06/25/supreme-court-yes-america-of-course-cops-need-a-warrant-to-search-your-smart-phone-during-an-arrest/feed/48313549Video: Rand Paul’s very libertarian speech at CPAChttp://hotair.com/archives/2014/03/07/video-rand-pauls-very-libertarian-speech-at-cpac/
http://hotair.com/archives/2014/03/07/video-rand-pauls-very-libertarian-speech-at-cpac/#commentsFri, 07 Mar 2014 22:41:31 +0000http://hotair.com/?p=300052It was the most hotly anticipated speech of the day — and if you don’t believe me, here’s Charlie Spiering’s video of the standing O that Paul got when he walked out. He had three options here. One: Play it safe by finding common ground. He could have given a speech attacking government spending and all sides of the party would have found it peachy keen. Two: Show the hawks that he’s not his old man. The Crimea standoff is an easy way for him to prove that he’s not a staunch isolationist like Ron Paul is. Problem is, the libertarians who turned out today want him to resist the hawks, and the hawks won’t believe that he sincerely disagrees with his father no matter what he says. Why use an easy lay-up of a speech in front of a very friendly crowd to disappoint people?

So he chose option three: Be the civil libertarian that he is, loud and proud, and unload on the surveillance state. One of the reasons the crowd was so primed is, of course, because Paul fans tend to show in major numbers at CPAC for their guys. It’s their way of flexing a little muscle at a high-publicity event. Ron Paul won the straw poll in 2010 and 2011; Rand himself won it last year and would like to do so again tomorrow. The only thing that could prevent that, realistically, is disappointing his base today. So he didn’t. On the contrary, he chose a particular target of libertarianism that has great currency among grassroots conservatives too, at least for now. Remember this poll? The tea-party numbers are remarkable:

Spending issues aside, there’s no surer way to unify libertarians and conservatives than by attacking the NSA — again, at least for now. (I tend to agree with Phil Klein that this issue carries an expiration date for many Republicans.) And I’m glad to see him staying true to who he is. The GOP primary campaign next year will have something precious that few primaries do, a truly meaningful philosophical debate between different wings of the party. The more Paul veers towards traditional conservative position, the less interesting that debate becomes. Let’s have a real choice, even if it means that some substantial minority on the right ends up feeling very disgruntled about the next nominee. Paul does stand a chance at winning, too: Someone on Twitter today wondered if he is to 2015 what Howard Dean was to 2003 on the left, i.e. a guy whom the base gets revved up for and who falls flat in voting when the rest of the party decides he’s unelectable. If that’s what you believe, you’re not paying attention to the dynamics in Iowa and New Hampshire.

Meanwhile, slowly but surely, he and Ted Cruz are starting to flesh out their differences on foreign policy. Who’s the real Reagan between them? Stay tuned. Exit question: Do we really want future presidents quoting Pink Floyd in major addresses? C’mon, Rand. If you’re going to borrow from classic rock, at least borrow from Zep.

]]>http://hotair.com/archives/2014/03/07/video-rand-pauls-very-libertarian-speech-at-cpac/feed/85300052Rand Paul: Ken Cuccinelli and I are suing Obama and the NSA tomorrow on Fourth Amendment groundshttp://hotair.com/archives/2014/02/11/rand-paul-ken-cuccinelli-and-i-are-suing-obama-and-the-nsa-tomorrow-on-fourth-amendment-grounds/
http://hotair.com/archives/2014/02/11/rand-paul-ken-cuccinelli-and-i-are-suing-obama-and-the-nsa-tomorrow-on-fourth-amendment-grounds/#commentsWed, 12 Feb 2014 00:21:58 +0000http://hotair.com/?p=297044A good example of why Rove’s criticism is so silly. Not only does Paul have a policy agenda, he’s not above using grand flourishes to advance it. Although this does have one thing in common with his dust-up with the Clintons: In both cases he’s raising his own political profile by picking a fight with a bigger-name Democrat. The context couldn’t be more different, but for an aspiring presidential candidate, it’s a smart way to operate.

Whether a Fourth Amendment suit will prevail depends on which judge they draw. Remember, within 12 days of each other in December, a federal district court judge appointed by Bush found the NSA’s data-mining program unconstitutional while another judge appointed by Clinton upheld it. Assuming both rulings are affirmed on appeal, it’s a cinch that this will end up in the Supreme Court. Paul’s shrewdly getting on board now, before it takes off, so that he’s in the middle of things as it moves up the legal food chain. He’s got a new website for the occasion too — DefendTheFourth.com, where you can enter your name and e-mail address to join his class-action suit. I wonder what other uses a presidential contender could find for a mailing list like that.

Good politics either way, though. It’ll further alienate hawks, but Paul doesn’t care about that. That bridge was burned long ago. Tea partiers, who disapprove of the NSA program to the tune of 68 percent, will love it. It’ll also earn him some respect among independents and Democrats; per the last link, there are now more people in both groups who oppose the program than who approve of it. The only way it blows up on him is if the program is dismantled and then something literally blows up, and even then, it’s SCOTUS who’ll take the blame, not Paul. I’m surprised he doesn’t have more GOP wannabes joining him on it, frankly.

]]>http://hotair.com/archives/2014/02/11/rand-paul-ken-cuccinelli-and-i-are-suing-obama-and-the-nsa-tomorrow-on-fourth-amendment-grounds/feed/99297044RNC votes via “overwhelming majority” to renounce NSA domestic surveillancehttp://hotair.com/archives/2014/01/24/rnc-votes-via-overwhelming-majority-to-renounce-nsa-domestic-surveillance/
http://hotair.com/archives/2014/01/24/rnc-votes-via-overwhelming-majority-to-renounce-nsa-domestic-surveillance/#commentsFri, 24 Jan 2014 19:01:11 +0000http://hotair.com/?p=294754Not a single member rose in opposition, according to Time. If you’re surprised — and I am, a little — go back and look at the polling data on NSA spying that Pew released a few days ago. Among Republicans generally, 56 percent disapprove of the program versus just 37 percent who approve. Among tea-party Republicans specifically, disapproval reaches 68 percent — the highest level recorded by Pew among any demographic. Today’s resolution does, in fact, reflect the opinion of most of the party right now.

Even so, I thought HQ for the GOP establishment would hedge a bit in condemning a program that was, after all, launched by the last Republican president, whose brother may or may not be the next nominee and whose own RNC chairman slammed Democrats in 2006 for opposing the NSA’s counterterror initiatives. It was just last year, in fact, that the current establishment favorite dismissed libertarians’ objections to the program as “dangerous.” One of the fault lines in the 2016 primaries would, I thought, form between establishment hawks and libertarians over the future of the program — and yet, 18 months out, here’s the ultimate Republican establishment group sounding like Rand Paul two years out.

Is this debate over?

WHEREAS, every time an American citizen makes a phone call, the NSA gets a record of the location, the number called, the time of the call and the length of the conversation, all of which are an invasion into the personal lives of American citizens that violates the right of free speech and association afforded by the First Amendment of the United States Constitution;

WHEREAS, the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution, which guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, that warrants shall issue only upon probable cause, and generally prevents the American government from issuing modern-day writs of assistance;…

RESOLVED, the Republican National Committee encourages Republican lawmakers to enact legislation to amend Section 215 of the USA Patriot Act, the state secrets privilege, and the FISA Amendments Act to make it clear that blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;

There’s more at the link, including a call for congressional Republicans to “immediately take action” to halt the programs, but I wanted to excerpt the above to show you how stark the language is. This isn’t a delicately phrased half-measure expressing “concern” and seeking “balance” between privacy interests and counterterrorism. They’re calling the program flatly unconstitutional, not just on Fourth Amendment grounds but on First Amendment grounds. And they’re not limiting the protections they want to U.S. citizens. Anyone residing here would be covered under the RNC’s new version of Section 215. My instinct always when the Committee does something showy to please its base is that they’re simply working an angle aimed at protecting establishment prerogatives, but I don’t know. Why use language like this if there’s an ulterior motive? If the party ends up with a pro-NSA nominee, the left will have a field day rubbing this in his face in 2016. The RNC’s all in.

Makes me wonder what happens if Christie, Rubio, and other would-be hawks in the field take this as their cue to start inching away from the NSA. Would that create space for a niche candidate to jump in and prosecute the case for surveillance? Peter King wants to be that guy but no one takes him seriously. Maybe Bolton won’t be able to resist this time. Exit question: Is … this what the RNC wants to distract tea partiers from by passing the anti-NSA resolution? A compressed primary schedule benefits candidates with lots of dough, which usually means establishment candidates. (But not always. Rand Paul won’t want for money from libertarians who donated to his dad.)

]]>http://hotair.com/archives/2014/01/24/rnc-votes-via-overwhelming-majority-to-renounce-nsa-domestic-surveillance/feed/39294754Quotes of the dayhttp://hotair.com/archives/2014/01/05/quotes-of-the-day-1605/
http://hotair.com/archives/2014/01/05/quotes-of-the-day-1605/#commentsMon, 06 Jan 2014 01:01:55 +0000http://hotair.com/?p=292293The whistleblower-versus-traitor argument has taken on a new dimension with recent moves to curtail the programs that Mr. Snowden revealed. A federal judge ruled that one program was probably unconstitutional, technology companies are demanding changes, lawmakers are considering restrictions, and even a White House panel urged modifications.

But inside the White House and the Justice Department, Mr. Ledgett’s suggestion has been met with stony opposition. The administration has made no move to reach out to negotiate any kind of deal and makes clear that it has no plans to. Officials express nothing but antipathy for Mr. Snowden, whose disclosures, one argued, have caused Al Qaeda and its allies “to change their tactics.”…

“The irony is the Obama administration welcomes the debate but condemns the man who sparked the debate,” said Anthony D. Romero, the executive director of the A.C.L.U. “The debate would never have happened but for Edward Snowden.”

***

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community…

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government. That’s why Rick Ledgett, who leads the N.S.A.’s task force on the Snowden leaks, recently told CBS News that he would consider amnesty if Mr. Snowden would stop any additional leaks. And it’s why President Obama should tell his aides to begin finding a way to end Mr. Snowden’s vilification and give him an incentive to return home.

***

Opponents of amnesty talk about the danger of encouraging more Snowdens. What’s less clear is what they mean by that. This kind of leak, with this scale and historical reach, is rare; whatever deal he might get is unlikely to be offered to anyone who copies a few files. The best way the government can deter the reckless theft of documents is by doing something about overclassification, which has the unintended (but entirely foreseeable) effect of over-clearing people who need to deal with that data for their jobs. Or if, by more Snowdens, we mean people in government who are alarmed enough by extraconstitutional activities to risk their careers and their liberty, do we really need to fear more Snowdens?. The opposite seems likelier.

This brings us to the second case for amnesty: Snowden has done the country good; he has earned his freedom. That is a line of reason that some in the government will have a hard time accepting. But there are a dozen conversations that would not be taking place without his revelations—conversations with consequences, as illustrated by Judge Richard Leon’s finding, earlier this week, that the N.S.A.’s bulk collection of metadata is likely unconstitutional. Nor is it credible to say that Snowden could have done what he did without breaking the law, not when we have also learned that the normal instruments of oversight and judicial review were broken. When Clapper lied to Wyden, that sealed the case for amnesty.

Isn’t that why there is such a thing as amnesty—to square circles like these? Another option may be the related, slightly lesser absolution of a pardon (unlike an amnesty, it generally involves first saying that you were guilty). A pardon is what Jimmy Carter offered to young men who had evaded the draft for the Vietnam War. Their acts, too, were tied to protests against the logic of the war, and may offer a useful parallel when thinking about Snowden’s legal situation.

***

[Sen. Rand] Paul compared Snowden’s law-breaking to the controversial testimony of Director of National Intelligence James Clapper, who previously testified before Congress that the NSA did not collect data from American citizens intentionally.

“I don’t think we can selectively apply the law. So James Clapper did break the law and there is a prison sentence for that. So did Edward Snowden,” Paul said.

“So I think personally he probably would come home for some penalty of a few years in prison which would be probably not unlike what James Clapper probably deserves for lying to Congress, and that maybe if they served in a prison cell together, we’d become further enlightened as a country over what we should and shouldn’t do,” Paul added…

“I think the only way he’s coming home is if someone would offer him a fair trial with a reasonable sentence, but I don’t think the death penalty,” Paul said of Snowden. “I mean, we’ve had people all over the news, some of the same people who are defending James Clapper lying to Congress are saying ‘off with his head’ or he should be hung from the nearest tree. I don’t think that’s appropriate and I think really in the end, history is going to judge that he revealed great abuses of our government and great abuses of our intelligence community.”

***

My scale weighs against Snowden. He launched an important, overdue debate and reassessment of collection practices. Perhaps that would not have happened otherwise. The intelligence community is reaping the bitter rewards of its combined aversion to transparency and its addiction to employing available technology to maximum potential.

Yet the existing oversight, while flawed, is not as feckless as Snowden portrays it, and the degree of intrusion on Americans’ privacy, while troubling, is not nearly as menacing as he sees it. In the government’s massive database is information about who I called and who they called in turn. Perhaps the government shouldn’t have it; surely, there should be more controls over when they can search it. But my metadata almost certainly hasn’t been scrutinized; even if it has, the content of the calls remains off-limits.

If the scope of Snowden’s theft and subsequent disclosures had been as limited, my scale might balance in the opposite direction. But the theft was massive. The injury to intelligence-gathering is of equal magnitude. “I am still working for the NSA right now,” Snowden announced. “They are the only ones who don’t realize it.”

Orwell might have called that double-think.

***

If that were all that Snowden had done, if his stolen trove of beyond-top-secret documents had dealt only with the NSA’s domestic surveillance, then some form of leniency might be worth discussing.

But Snowden did much more than that. The documents that he gave the Washington Post’s Barton Gellman and the Guardian’s Glenn Greenwald have, so far, furnished stories about the NSA’s interception of email traffic, mobile phone calls, and radio transmissions of Taliban fighters in Pakistan’s northwest territories; about an operation to gauge the loyalties of CIA recruits in Pakistan; about NSA email intercepts to assist intelligence assessments of what’s going on inside Iran; about NSA surveillance of cellphone calls “worldwide,” an effort that (in the Post’s words) “allows it to look for unknown associates of known intelligence targets by tracking people whose movements intersect.” In his first interview with the South China Morning Post, Snowden revealed that the NSA routinely hacks into hundreds of computers in China and Hong Kong…

Whistleblowers have large egos by nature, and there is no crime or shame in that. But one gasps at the megalomania and delusion in Snowden’s statements, and one can’t help but wonder if he is a dupe, a tool, or simply astonishingly naïve.

Along these same lines, it may be telling that Snowden did not release—or at least the recipients of his cache haven’t yet published—any documents detailing the cyber-operations of any other countries, especially Russia or China, even though he would have had access to the NSA’s after-action reports on the hundreds or thousands of hacking campaigns that they too have mounted over the years.

***

[T]he latest installment from the “Snowden files” (as the Post’s subhead put it Friday) made me wonder if what we’re experiencing and reading right now is still journalism, investigative or otherwise, or whether it is becoming something very different. I wonder if, after all the disclosures that have already touched off a major reassessment of National Security Agency surveillance by the U.S. government, what we’re reading now is more like free advertising for a certain point of view — Edward Snowden’s point of view, that is, as well as that of his comrade-in-outrage, Glenn Greenwald…

[D]espite very justifiable doubts about the efficacy of the NSA’s bulk collection of telephony metadata, and very reasonable concerns that more protections should be built in against the possibility of a future J. Edgar Hoover — an abuser of liberty and privacy, in other words — intelligence experts have said most of the agency’s key programs, such as surveillance of emails abroad, have already proven critical to national security. As panel member Michael Morell, the former acting director of the CIA, told me last month, even the telephony program might have helped to avert 9/11. He also said he is in favor of restarting a program the NSA discontinued in 2011 that involved the collection of “metadata” for Internet communications. Both programs together, he added, have “the ability to stop the next 9/11.”

So the question is, what purpose does this endless and seemingly indiscriminate exposure of American national-security secrets serve? This is most definitely not the Pentagon Papers, when the Post and the New York Times exposed the truth about a war already largely gone by. This is, if not quite a war, then at least a genuine present danger to Americans — a threat that is, according to some officials, only growing more dangerous.

***

Snowden has argued that he had a moral duty to challenge an intelligence machinery that was out of control. Hudson Institute senior fellow Gabriel Schoenfeld, author of “Necessary Secrets: National Security, the Media, and the Rule of Law,” is not impressed. Snowden outed U.S. intelligence “for engaging in activity that almost every state engages in.” The former contractor then went into hiding in China and Russia, where he enjoys temporary asylum. “I think it is disgraceful,” quoth Schoenfeld, that Snowden lectures Washington but “doesn’t have the courage to criticize abuses of free speech in his host country.”…

It’s almost funny when you follow the editorial boards’ logic. The papers argued that Snowden is a hero because he leaked material about which the public has a right to know. Then they supported granting amnesty or leniency if Snowden would agree to hand over any remaining documents rather than share them with the world. A trial would give Snowden the opportunity to tell his story, the American public a chance to find out what exactly Snowden leaked and Washington the burden of proving a criminal case — but the Times and The Guardian apparently prefer a backroom deal.

]]>http://hotair.com/archives/2014/01/05/quotes-of-the-day-1605/feed/225292293Federal judge: The NSA’s phone metadata program is constitutionalhttp://hotair.com/archives/2013/12/27/federal-judge-the-nsas-phone-metadata-program-is-constitutional/
http://hotair.com/archives/2013/12/27/federal-judge-the-nsas-phone-metadata-program-is-constitutional/#commentsFri, 27 Dec 2013 19:31:59 +0000http://hotair.com/?p=291744Eleven days ago, a federal judge in D.C. said the program violates the Fourth Amendment. Today, another federal judge in New York said it doesn’t. If each of those rulings is upheld on appeal, a Supreme Court hearing to settle the circuit split is a fait accompli. Can’t wait to see how the politics of that shakes out during the 2015 primaries. Does Hillary attack the program to pander to liberals or defend it to signal that she’ll be tough on terror? Does Ted Cruz use it as a wedge against Rand Paul by cautiously embracing it or does he lower the boom to try to impress more libertarian-flavored tea partiers?

Fun fact: Richard Leon, the D.C. judge who declared the program unconstitutional, was appointed by George W. Bush (and nominated the day before 9/11). William Pauley, the New York judge who upheld the program, was appointed by Clinton.

In a 54-page decision, Pauley said the program “vacuums up information about virtually every telephone call to, from, or within the United States.”

But he said the program’s constitutionality “is ultimately a question of reasonableness,” and that there was no evidence that the government had used “bulk telephony metadata” for any reason other than to investigate and disrupt terrorist attacks.

Here’s the opinion. If you’re only interested in the Fourth Amendment analysis, skip to page 38. One point of agreement between Leon and Pauley is that the respective plaintiffs have standing to bring their cases. That’s been hotly contested in NSA challenges since, per the statute, challenges to metadata collection are supposed to be heard exclusively by the FISA Court. Leon got around that by ruling that any federal court can hear a constitutional challenge to the program; it’s only the statutory challenges that are limited to the FISA Court. Pauley gets around it by noting that the feds don’t dispute that the NSA is collecting the ACLU’s phone records, which means the injury to the group is sufficiently specific to let them come to court. The fact that the DOJ didn’t put up a fight on standing makes me think that the White House is, perhaps, ready for SCOTUS to take on this issue. If they rule in favor of the program, great. That’ll quiet some (but not all) of the public skepticism. If they rule against the program, that’s okay too — then O can end it or mend it, which will take some political heat off, and if there’s another terror attack before his term ends he can blame the Supreme Court for taking away one of his weapons.

As for the substance of the ruling, you can tell which way this one’s going from the first few paragraphs, in which Pauley theorizes that having the metadata program in place on 9/11 would have tipped the feds to the fact that the hijackers were already in place inside the U.S. Here’s the key paragraph from the Fourth Amendment section:

They’re not your records, they’re the telephone company’s records, and you can’t have a “reasonable expectation of privacy” in something that not only don’t belong to you but was created using information that you happily volunteered to a third party. That’s in line with the Supreme Court’s decision in Smith v. Maryland in the 1970s, the same decision that Judge Leon ruled shouldn’t apply to NSA cases now given the vastly broader scope of data-harvesting and new technological capabilities that the feds have developed to analyze it. In fact, says Pauley, there are all sorts of things the government’s entitled to find out about you because you have no constitutional privacy interest in them. A key footnote, flagged by Gabe Malor:

But … what about the sheer scope of the program? The Smith case involved cops obtaining the phone records for a particular criminal suspect; the NSA program is about collecting phone records for everyone, nearly all of whom are innocent of terrorism, and then sifting through it for evidence of malfeasance. It’s the ultimate fishing expedition, not a targeted search. To which Pauley says: So what? The Supreme Court’s never said that the feds need to conduct the narrowest means of searching. On the contrary, the program wouldn’t work if it wasn’t comprehensive:

You need to distinguish between collecting data, says Pauley, and accessing and exploiting that data. The NSA is required (in theory) to submit to FISA Court approval and oversight on the latter, which is where the potential abuses of power lie. Merely gathering the data, though, falls under Smith, which remains good law until the Supreme Court says otherwise. And, adds Pauley, the program does work to stop terrorism; he relays three examples offered by the feds on page 48. Judge Leon claimed in his own opinion that the DOJ had no offered no such evidence. That’s a striking difference between them — from his opening invocation of 9/11, Pauley seems fully convinced that the program is worthwhile. Leon seems to think it’s worthless, or close enough to worthless that the potential for abusive privacy intrusions crushes any redeeming value it might have.

Speaking of which, one more excerpt from Pauley that sharply contradicts Leon:

Leon mentioned Snowden’s revelations in his own opinion as one of the factors in granting standing to the plaintiffs. It used to be, he argued, that no one could get a case like this in front of a judge because the NSA programs were so secret that no one knew exactly what sort of violation to allege. Thanks to Snowden, that’s no longer true. Pauley’s take is the opposite: How can we allow someone who’s facing criminal charges for spilling state secrets to dictate standing in federal court?

It’s fun to parse these legal niceties but the core disagreement here is simple. Leon thinks the government’s surveillance power has grown so enormous in the Internet age that federal courts need to revisit their jurisprudence on data collection and privacy. The Smith decision might have been fine for the 1970s, when the feds could only do so much with the records they obtained. It’s not fine now. As state power expands, it’s up to the courts to protect individual privacy by being more exacting in its application of the Bill of Rights. Pauley thinks it’s not his place as a district court judge to overturn a decision of the Supreme Court, and in any case, the privacy arguments are overblown. American judges have never held that you have a right to shield all of your personal data from the state, and besides, there are procedures in place to limit what the NSA can do with your data. if you’ve got a beef with state surveillance, take it up with the responsible parties, the executive and legislative branches. It’s on you to build political pressure on them to the point where they feel it’s more risky not to reform the program than it is to reform it. Ultimately, this is the old debate between viewing terrorism as a matter of national security or of law enforcement. Should there be special rules in the post-9/11 age to make it easier for the feds to stop terrorism before it happens? If so, why limit that power to acts of terrorism instead of extending it to other terrible crimes? Like I say, 2015 will be interesting.

]]>http://hotair.com/archives/2013/12/27/federal-judge-the-nsas-phone-metadata-program-is-constitutional/feed/78291744Quotes of the dayhttp://hotair.com/archives/2013/12/16/quotes-of-the-day-1587/
http://hotair.com/archives/2013/12/16/quotes-of-the-day-1587/#commentsTue, 17 Dec 2013 03:31:18 +0000http://hotair.com/?p=290714National Security Agency officials are considering a controversial amnesty that would return Edward Snowden to the United States, in exchange for the extensive document trove the whistleblower took from the agency…

The NSA official in charge of assessing the alleged damage caused by Snowden’s leaks, Richard Ledgett, told CBS News an amnesty still remains controversial within the agency, which has spent the past six months defending itself against a global outcry and legislative and executive proposals to restrain its broad surveillance activities.

“My personal view is, yes, it’s worth having a conversation about,” Ledgett, who is under consideration to become the agency’s top civilian, said in an interview slated to air Sunday evening on 60 Minutes. “I would need assurances that the remainder of the data could be secured, and my bar for those assurances would be very high. It would be more than just an assertion on his part.”

“Mr. Snowden is accused of leaking classified information and faces felony charges here in the United States,” said Caitlin Hayden, spokesperson for the National Security Council. “He should be returned to the U.S. as soon as possible, where he will be accorded full due process and protections.”

Investigators remain in the dark about the extent of the data breach partly because the N.S.A. facility in Hawaii where Mr. Snowden worked — unlike other N.S.A. facilities — was not equipped with up-to-date software that allows the spy agency to monitor which corners of its vast computer landscape its employees are navigating at any given time…

“They’ve spent hundreds and hundreds of man-hours trying to reconstruct everything he has gotten, and they still don’t know all of what he took,” a senior administration official said. “I know that seems crazy, but everything with this is crazy.”

***

Amnesty? Have they lost their minds? Snowden is a traitor to his country, who is responsible for the most damaging theft and release of classified information in American history. His actions have exposed not only the NSA terrorist surveillance programs, but our intelligence collection efforts against foreign governments, including Russia and China. He has aided our enemies, shared intelligence with potential adversaries, and has damaged our ability to defend against future terrorist attacks. Maybe we offer him life in prison instead of a firing squad, but amnesty? That would be insanity…

If Edward Snowden can get amnesty after what he has done, then who could ever be prosecuted for any intelligence leak? How could we possibly pursue charges against leakers for individual disclosures, however damaging, when someone like Snowden is allowed to get away with the largest disclosure of critical intelligence in our history?

“That kid was a genius among geniuses,” says the NSA staffer. “NSA is full of smart people, but anybody who sat in a meeting with Ed will tell you he was in a class of his own…I’ve never seen anything like it.”…

Snowden had been brought to Hawaii as a cybersecurity expert working for Dell’s services division but due to a problem with the contract was reassigned to become an administrator for the Microsoft intranet management system known as Sharepoint. Impressed with his technical abilities, Snowden’s managers decided that he was the most qualified candidate to build a new web front-end for one of its projects, despite his contractor status. As his coworker tells it, he was given full administrator privileges, with virtually unlimited access to NSA data. “Big mistake in hindsight,” says Snowden’s former colleague. “But if you had a guy who could do things nobody else could, and the only problem was that his badge was green instead of blue, what would you do?”…

Snowden’s superiors were so impressed with his skills that he was at one point offered a position on the elite team of NSA hackers known as Tailored Access Operations. He unexpectedly turned it down and instead joined Booz Allen to work at NSA’s Threat Operation Center…

Snowden’s former colleague says that he or she has slowly come to understand Snowden’s decision to leak the NSA’s files. “I was shocked and betrayed when I first learned the news, but as more time passes I’m inclined to believe he really is trying to do the right thing and it’s not out of character for him. I don’t agree with his methods, but I understand why he did it,” he or she says. “I won’t call him a hero, but he’s sure as hell no traitor.”

***

Edward Snowden, the former security contractor who leaked a trove of National Security Agency documents, welcomed a court ruling on Monday that declared the bulk collection of Americans’ telephone records to be a likely violation of the US constitution.

Snowden said the ruling, by a US district judge, justified his disclosures. “I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” he said in comments released through Glenn Greenwald, the former Guardian journalist who received the documents from Snowden.

“Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many,” said Snowden, whose statement was first reported by the New York Times.

]]>http://hotair.com/archives/2013/12/16/quotes-of-the-day-1587/feed/285290714Federal judge finds NSA phone metadata collection probably violates the Fourth Amendmenthttp://hotair.com/archives/2013/12/16/federal-judge-halts-nsa-phones-metadata-collection-finds-it-probably-violates-the-fourth-amendment/
http://hotair.com/archives/2013/12/16/federal-judge-halts-nsa-phones-metadata-collection-finds-it-probably-violates-the-fourth-amendment/#commentsMon, 16 Dec 2013 20:44:20 +0000http://hotair.com/?p=290667The headline says “probably” because the ruling was on a preliminary injunction. He’ll issue a ruling on a permanent injunction after this order is inevitably appealed and he hears further arguments from both sides, assuming this issue doesn’t land before the Supreme Court first. A weird fact about the judge in this case: He was nominated to the bench by Dubya on … September 10, 2001. If you support the NSA metadata program, there’s the peg for the obligatory “September 10th mentality” talking point.

Here’s the opinion, which is worth skimming even if you’re not trained in law. Leon writes more accessibly than most judges, especially in the key section. Three issues in a case like this. One: Doesn’t the law say that only the FISA Court can hear a challenge to the NSA surveillance program? Leon’s a district court judge, not a FISA judge. How can he have jurisdiction? Two: Didn’t the Supreme Court rule once before, in the late 70s, that there’s no privacy interest in phone metadata? If that’s the case, how can there be a Fourth Amendment issue here? And three: Even if there’s a Fourth Amendment issue, why doesn’t mass metadata collection qualify as a “reasonable” search and seizure? It’s crucial to catching terrorists before they strike. Isn’t it?

On point one, Leon says it’s true — he has no jurisdiction to hear statutory challenges to a DOJ collection order. If you’re claiming that the DOJ exceeded the authority granted to it by Congress in issuing an order, that’s for the FISA Court to decide. Not only that, but American citizens don’t have standing to sue in the FISA Court. Only the recipient of a collection order, like Google or Verizon, can do that. In fact, because it’s illegal for the recipient to reveal the existence of a collection order, American citizens aren’t even supposed to know when a collection order is issued, let alone be able to sue the government. So no, there’s no jurisdiction for a federal district court to hear challenges to an order — on statutory grounds. But what if the challenge is on constitutional grounds, i.e. that an order violates the Fourth Amendment? District courts can hear those challenges, says Leon, because potential constitutional violations are of the utmost importance and Congress never went out of its way to say that that type of challenge should be heard only in the FISA Court too. Fourth Amendment questions are fair game for any lower-level federal court.

Fair enough. But what about point two, that the Supreme Court’s 1979 ruling in Smith v. Maryland established a precedent that metadata can be collected under the Fourth Amendment? Leon’s answer is the guts of the opinion; I suggest skipping to page 43 and reading it yourself. He gives four reasons why Smith shouldn’t control decisions on NSA surveillance. First, Smith dealt with a case where the cops wanted a particular defendant’s phone records for use at trial, not everyone’s phone records to store for years into the future. Second, Smith involved a discrete case, not a formal policy established by the federal government and telecom companies for continuous data-harvesting. Third, technology has advanced so wildly in this area since Smith was decided that it’s foolish to use it as controlling precedent. Mass data harvesting was science fiction in 1979 when “pen registers” were the hot legal topic of the day. Clearly, given concerns about scale and invasiveness, courts should consider the issue anew. And fourth, metadata can tell techies much more now than it could 34 years ago. You’re simply dealing with a more significant privacy interest today than you were in Smith. Result: Yes, this program implicates the Fourth Amendment.

The last chance for NSA defenders is to argue that, all of that aside, the searches are “reasonable” because they’re a speedy way for the feds to sniff out and interrupt terrorist attacks. Just one problem with that, says Leon: The feds have produced no evidence of it. He asked them to show him how the metadata program is helping to catch the bad guys where all other methods have failed and, so far at least, they can’t do it. That’s what triggers the preliminary injunction (which is momentarily stayed while the order is appealed). If the DOJ could show gangbusters results in stopping terrorism from the metadata program, that compelling state interest would affect the balance of equities in granting the injunction. As it is, because they’re offering nothing, Leon treats it as an easy call.

I’ll highlight one passage for you since you’re likely to hear Snowden fans mention it anyway:

In other words, if not for Snowden’s leaks, this case literally might not have happened. Per the Supreme Court’s ruling in the Clapper case earlier this year, you can’t get standing before a federal judge by merely speculating that the NSA is targeting you. You need to show a real likelihood of concrete injury. Right, says Leon — and now, thanks to Snowden’s exposure of PRISM, we’ve got that. The leaker has changed the legal facts on the ground, enough so to make a Fourth Amendment lawsuit possible. That may be the single most tangible change in U.S. surveillance policy to have come from Snowden’s leaking, despite Obama’s endless promises about reform.

If nothing else, let’s hope this is harbinger of federal courts being more generous in stretching standing law to accommodate constitutional suits by private citizens. Separation of powers is fertile ground for that, as you already know.

Update: I tweaked the headline, which originally said the judge had halted metadata collection, because the order is stayed while the appeal plays out. If the feds lose the appeal — which may or may not reach the Supreme Court — then the program will be halted.

]]>http://hotair.com/archives/2013/12/16/federal-judge-halts-nsa-phones-metadata-collection-finds-it-probably-violates-the-fourth-amendment/feed/40290667More from WaPo’s bombshell: Feinstein didn’t know about NSA’s audit of privacy violationshttp://hotair.com/archives/2013/08/16/more-from-wapos-bombshell-feinstein-didnt-know-about-nsas-audit-of-privacy-violations/
http://hotair.com/archives/2013/08/16/more-from-wapos-bombshell-feinstein-didnt-know-about-nsas-audit-of-privacy-violations/#commentsFri, 16 Aug 2013 19:21:52 +0000http://hotair.com/?p=275122Ed hit the big points about WaPo’s scoop in his post this morning but I want to make sure people see this too. Arguably the biggest news from the story isn’t that the NSA broke the rules; when you’ve got thousands of analysts combing through billions of communications, you’re destined to have “incidents.” If — if — you’re okay with the a massive surveillance state, then to some extent you’re accepting this as the cost of doing business, just as people who prefer bigger police forces tacitly accept that more abuses, both intentional and negligent, will occur.

The big story is that Congress, purported overseers of the NSA and guardians of the public’s privacy, seems to have zero idea of how many “incidents” there are. And that includes the congressional watchdog-in-chief — Dianne Feinstein, chairman of the Senate Intelligence Committee. The NSA, it seems, really is an island unto itself inside the federal government:

The documents, provided earlier this summer to The Washington Post by former NSA contractor Edward Snowden, include a level of detail and analysis that is not routinely shared with Congress or the special court that oversees surveillance. In one of the documents, agency personnel are instructed to remove details and substitute more generic language in reports to the Justice Department and the Office of the Director of National Intelligence…

The May 2012 audit, intended for the agency’s top leaders, counts only incidents at the NSA’s Fort Meade headquarters and other ­facilities in the Washington area. Three government officials, speak­ing on the condition of anonymity to discuss classified matters, said the number would be substantially higher if it included other NSA operating units and regional collection centers.

Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.), who did not receive a copy of the 2012 audit until The Post asked her staff about it, said in a statement late Thursday that the committee “can and should do more to independently verify that NSA’s operations are appropriate, and its reports of compliance incidents are accurate.”…

Members of Congress may read the unredacted documents, but only in a special secure room, and they are not allowed to take notes. Fewer than 10 percent of lawmakers employ a staff member who has the security clearance to read the reports and provide advice about their meaning and significance.

I’m boldfacing parts of every paragraph because there’s news in literally every paragraph of the Post’s story. And some of it’s only alluded to: Bart Gellman, the author, notes that the NSA quadrupled its oversight staff in 2009 after a “series of significant violations.” That’s … nice, I guess, that they boosted anti-abuse measures, and O will no doubt claim that as his influence at work when he’s asked about this. But it leaves open the question of how “significant” those earlier violations were and what might have gone undetected in the pre-2009 era of less oversight, and the fact remains that the most meaningful scrutiny the NSA is getting from inside government is from its own staff. How useful is that in a case like the one described by Gellman from 2011 when the NSA decided as a matter of policy, not as a clerical error, to expand the amount of data it collected from Americans? In that instance the FISA court torpedoed the new program as a violation of the Fourth Amendment, but FISA resistance to NSA data-gathering is by all accounts rare. By and large, we’re trusting one sub-branch of government to check and balance itself.

Three possibilities going forward to deal with privacy abuses. One: Scale back the NSA. Less info-harvesting means fewer opportunities to err and a smaller database to access. I’m skeptical that that’ll happen — government wants this tool and the public seems resigned to the erosion of privacy — but hope springs eternal. Two: More automation. One of WaPo’s NSA sources defends the privacy violations by saying, “We’re a human-run agency operating in a complex environment…” What if the agency were, for the most part, no longer human-run? Artificial intelligence is probably only a few decades away from replacing many NSA analysts, just as drone technology will replace human pilots sooner rather than later. Take the process out of corrupt human hands and place it in a machine’s and the public might feel better about it. Three: Either overhaul the FISA court or create a new, separate federal agency for the express purpose of checking and balancing the NSA. Obama already suggested FISA court reform and an independent panel to review NSA procedures at his presser last week but I’m imagining something more permanent, like a public defender’s office strictly for intelligence matters. That idea probably won’t fly with righties because it means a further expansion of government, but libertarians in Congress might warm to it as a fallback option if they can’t get traction to cut NSA’s budget or scale down to size.

Exit quotation from Barack “Transparency” Obama, one week ago: “[A]ll the stories that have been written, what you’re not reading about is the government actually abusing these programs and listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now, part of the reason they’re not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.”

]]>http://hotair.com/archives/2013/08/16/more-from-wapos-bombshell-feinstein-didnt-know-about-nsas-audit-of-privacy-violations/feed/50275122Open thread: House to vote on whether to defund the NSA; Update: Amash video added; Update: Amendment fails, 205/217http://hotair.com/archives/2013/07/24/open-thread-house-to-vote-on-whether-to-defund-the-nsa/
http://hotair.com/archives/2013/07/24/open-thread-house-to-vote-on-whether-to-defund-the-nsa/#commentsWed, 24 Jul 2013 20:41:34 +0000http://hotair.com/?p=271589Ed blogged it this morning but it’s worthy of an open thread too, not just because the future of the surveillance state is a momentous issue but because this is a rare House vote where I have zero clue how it’s going to go. I think it’s headed for a handy defeat because hawkish Republicans won’t want to take away a counterterror tool and loyal Democrats won’t want to embarrass Obama, but I don’t know how handy. I don’t even know which side will provide more votes in favor. It’s an unusually opaque floor vote and a temperature check on where the Republican caucus stands these days on civil liberties versus national security. Is the Amash/Rand Paul contingent stronger than thought, or is the GOP still basically Bush’s party? Matt Welch is quite right: If Obama’s half as serious as he pretends to be in calling for a “national conversation” about surveillance or whatever, this is a fine place to start.

There is reason to think the libertarians will do better than thought. The White House, as Ed noted, is sufficiently worried about this to have sent NSA chief Gen. Keith Alexander to lobby Congress last night. C-SPAN says floor debate is set for 5:15 ET and I’m hearing on Twitter that the final votes of the day are scheduled for 5:45-6 p.m. This is worth watching. Stand by for updates.

Update: Justin Amash, who sponsored the amendment, was on Fox News within the past hour arguing that NSA surveillance is a violation of the Fourth Amendment. I can’t find the video online yet but I’ll post it here once it’s up.

In the meantime, a question: Should the GOP line up behind this, if only for tactical reasons? The bill’s going nowhere in the Senate so there’s no risk of the NSA actually losing funding. Republicans could woo disaffected libertarians with a symbolic vote here and put Harry Reid and Obama on the spot as defenders of massive data-mining against civil liberties. Don’t forget that they’ll have some bipartisan cover too; surely a few Democrats in the House care enough about this issue, a la Ron Wyden in the Senate, that they’ll vote with Amash. The potential pitfall for Republicans in doing that is that, as noted this morning, most of the public doesn’t object to NSA surveillance. Most/many of those people are probably lukewarm, though, and won’t care about a vote for a bill that has no chance of becoming law. It’s the NSA critics who are passionate, and those critics will appreciate the gesture. I’ll bet there are more Republican votes than expected for Amash’s bill, precisely for this reason.

Update: Since we’re on the subject of the NSA, and since I already posted something about the public’s views of Snowden this morning, yikes:

Per NBC/WSJ poll, Snowden's fav/unfav is 11%-35% — an opinion pretty much shared by Dems, GOPers, and indies alike

More than a month after leaker Edward Snowden revealed information about the National Security Agency’s surveillance and data-gathering programs, 55 percent of Americans say they’re more worried the United States will go too far in violating privacy rights, according to the NBC News/Wall Street Journal poll.

That’s a significant shift from the immediate aftermath of the 9/11 terrorist attacks, when an equal number in the Dec. 2001 NBC/WSJ poll — 55 percent — worried more that the United States wouldn’t go far enough in monitoring potential terrorists who live in the U.S.

The last time the poll asked this question, in July 2006, Americans were split, with 45 percent worried that this surveillance would violate privacy rights and with 43 percent worried it wouldn’t go far enough to pursue potential terrorists.

Rarely do you see votes like that in the House these days. Philip Klein’s right, though: Those numbers wouldn’t be quite as bipartisan if a Republican was in the White House.

]]>http://hotair.com/archives/2013/07/24/open-thread-house-to-vote-on-whether-to-defund-the-nsa/feed/88271589WA gun bill includes police searches without warrantshttp://hotair.com/archives/2013/02/19/wa-gun-bill-includes-police-searches-without-warrants/
http://hotair.com/archives/2013/02/19/wa-gun-bill-includes-police-searches-without-warrants/#commentsTue, 19 Feb 2013 13:41:42 +0000http://hotair.com/?p=245300Oh, let’s not call them searches. Let’s call theminspections, just a small price for gun owners to pay for exercising a right explicitly protected in the Constitution, and without any probable cause apparent for a crime being committed. After all, we know that will convince criminals not to keep weapons, right? Right?

Even gun-control activists in Washington are embarrassed by this, er, mistake (via Instapundit):

Forget police drones flying over your house. How about police coming inside, once a year, to have a look around?

As Orwellian as that sounds, it isn’t hypothetical. The notion of police home inspections was introduced in a bill last week in Olympia.

That it’s part of one of the major gun-control efforts pains me. It seemed in recent weeks lawmakers might be headed toward some common-sense regulation of gun sales. But then last week they went too far. By mistake, they claim. But still too far.

“They always say, we’ll never go house to house to take your guns away. But then you see this, and you have to wonder.”

Most of us aren’t wondering. As for this being a “mistake,” the description from Danny Westneat in the Seattle Times makes it sound like a pretty deliberate error:

But then, with respect to the thousands of weapons like that already owned by Washington residents, the bill says this:

“In order to continue to possess an assault weapon that was legally possessed on the effective date of this section, the person possessing shall … safely and securely store the assault weapon. The sheriff of the county may, no more than once per year, conduct an inspection to ensure compliance with this subsection.”

In other words, come into homes without a warrant to poke around. Failure to comply could get you up to a year in jail.

A mistake is a typo or forgetting to insert or remove a key word in legislation; that happens from time to time, with embarrassing but not usually substantial consequences. This was obviously a deliberate part of the bill, intended to intimidate gun owners into giving up the exercise of their rights, again with the meaningless rubric of “assault weapons.”

Justice Department researchers have concluded that an assault weapons ban is “unlikely to have an effect on gun violence,” but President Obama has not accepted their report as his administration’s official position.

“Since assault weapons are not a major contributor to US gun homicide and the existing stock of guns is large, an assault weapon ban is unlikely to have an impact on gun violence,” the DOJ’s National Institute for Justice explains in a January 4 report obtained by the National Rifle Association. “If coupled with a gun buyback and no exemptions then it could be effective.” That idea is also undermined by the acknowledgement that “a complete elimination of assault weapons would not have a large impact on gun homicides.”

The research in that report didn’t stop Obama denouncing “weapons of war” during his State of the Union speech on February 12.

The number of homicide victims from all rifle types is about 3% of all homicide victims on an annual basis. They are far outstripped by victims from cutting weapons or even “personal weapons” — hands and feet. Anyone who paid attention to the impact (and lack thereof) of the 1994 ban already knows this. However, this current hysteria makes for a wonderful opportunity to frighten law-abiding citizens with threats of random police searches while doing nothing about the criminals, who will benefit from the redirection of law-enforcement resources.